IN THE SUPREME COURT OF

State of Florida, ) ) Appellant/Cross-Appellee, ) ) Docket No. SC02-302 v. ) LT Case No. 77-116-CFA ) Bennie Demps, ) ) Appellee/Cross-Appellant. ) )

INITIAL BRIEF OF APPELLANT/CROSS-APPELLEE

OFFICE OF THE COMPTROLLER STATE OF FLORIDA

Robert B. Beitler General Counsel Richard T. Donelan, Jr. Chief Counsel Department of Banking and Finance 101 East Gaines Street, Suite 526 Tallahassee, FL 32399-0350 (850)410-9896 Fax: (850)410-9645

Attorneys for Appellant Office of the Comptroller State of Florida TABLE OF CONTENTS

Page(s)

TABLE OF CONTENTS ...... i

TABLE OF AUTHORITIES ...... iii

PRELIMINARY STATEMENT ...... v

STATEMENT OF THE CASE AND FACTS ...... 1

SUMMARY OF ARGUMENT ...... 16

STANDARD OF REVIEW ...... 19

ARGUMENT

I. THE TRIAL COURT’S ORDER DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF BY MISAPPLYING THE CO-COUNSEL COMPENSATION CONDITIONS OF CHAPTER 27, PART IV, FLORIDA (2000) ...... 19

II. THE TRIAL COURT’S ORDER DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BY ORDERING THE COMPTROLLER TO PAY ATORNEY’S FEES TO COUNSEL RETAINED BY MR. SALMON TO REPRESENT HIM IN THE PROCEEDINGS BELOW ...... 31

III. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BY ORDERING THE COMPTROLLER TO PAY ATTORNEY’S FEES TO COUNSEL APPEARING AS EXPERT WITNESSES FOR MR. SALMON IN THE PROCEEDINGS BELOW ...... 36

A. Mr. Salmon Was Not The Prevailing Party Below...... 38

2 B. Mr. Salmon Is Responsible For His Own Expert Witness Fees ...... 41

C. No Sound Public Policy Requires The State Of Florida To Fund Unsuccessful Challenges To Its Own Statutes ...... 43

CONCLUSION ...... 47

CERTIFICATE OF SERVICE ...... 48

CERTIFICATE OF COMPLIANCE ...... 49

3 TABLE OF AUTHORITIES

CASES: PAGE

Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed. 2d 141 (1975) ...... 33

AmeriSteel Corp. v. Clark, 691 So. 2d 473 (Fla. 1997) ...... 30

Daniel v. Fla. State Turnpike Authority, 213 So. 2d 585 (Fla. 1968) ...... 30

Demps v. State, 761 So. 2d 302 (Fla. 2000) ...... 6, 19

Donato v. American Telephone and Telegraph Co., 767 So. 2d 1146 (Fla. 2000) ...... 30

Fla. Dept. of Revenue v. Fla. Municipal Power Agency , 789 So. 2d 320, 323 (Fla. 2001) ...... 30

Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1148, 1149 (Fla.1985) ...... 33

Hampton’s Estate v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla. 1976) ...... 33

Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986) ...... 27, 44, 46

Olive v. Maas, 811 So. 2d 644 (Fla. 2002) ...... 44

Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249 (Fla. 1987) ...... 30

4 Songer v. Citrus County, 462 So.2d 54 (Fla. 5th DCA 1984) ...... 34

Standard Guar. Ins. Co. v. Quanstrom, 55 So.2d 828 (Fla. 1990) ...... 33

State v. Barrs, 87 Fla. 168, 99 So.2d 668 (Fla. 1924) ...... 33

State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993) ...... 32

Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991) ...... 30

Travieso v. Travieso, 474 So.2d 1154 (Fla. 1984) ...... 45, 46

Webb v. Scott, 129 Fla. 111, 176 So.2d 442 (Fla. 1936) ...... 33

White v. Bd. Of County Commissioners of Pinellas County, 537 So. 2d 1376 (Fla. 1989) ...... 27

Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501, 504 (Fla. 1982) ...... 33

Zinn v. Dzialynski, 14 Fla. 187, (1872) ...... 33

FLORIDA STATUTES:

27.703, ...... 8, 20, 43

27.710, Florida Statutes ...... passim

5 27.711, Florida Statutes ...... passim

27.7001, Florida Statutes ...... 43

54.071, Florida Statutes ...... 38

57.041, Florida Statutes ...... 42

92.151, Florida Statutes ...... 38, 42

92.231, Florida Statutes ...... 38

925.035, Florida Statutes ...... 4

OTHER AUTHORITIES:

Florida Constitution Article VII, Section 1(c) ...... 28

Opp. Atty. Gen., 067-69 (October 25, 1967) ...... 38

6 PRELIMINARY STATEMENT

The following signals and abbreviations will be used in this Initial Brief:

References to the Appellant, Robert F. Milligan, Comptroller of Florida, are indicated by “Comptroller” or “Office of the Comptroller” as appropriate.

References to Appellee/Cross-Appellant William B. Salmon are to “Mr. Salmon”.

References to George F. Schaefer, Appellee in companion case SC01-1301 and appellate co-counsel to Mr. Salmon in the case below, are to “Mr. Schaefer.”

Defendant Bennie E. Demps will be referred to as “Mr. Demps.” This Court’s opinion in Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986) is relevant to the issues on appeal, and will be referred to throughout as Makemson for convenience. All references are to Florida Statutes (2001) unless otherwise indicated.

References to the Record on Appeal are primarily to the “Supplemental

Record on Appeal,” submitted to the Court in May of 2002. These references are signalled by “SR-” and the page number to which reference is made. The

Supplemental Record on Appeal, at the direction of Appellant, was to include the

Amended Record on Appeal from Case No. SC01-1301, submitted on November

16, 2001. Rather than including the corrected Amended Record, the Supplemental

7 Record, at pages 1-95, includes the defective and incomplete original Record on

Appeal from Case No. SCO1-1301, submitted on August 10, 2001. In the interest of accuracy, references are made to the Amended Record which is already before this Court in Case No. SC01-1301, instead of the portion of the Supplemental

Record which contains inaccurate original record submission. These references are signalled by “AR-” and the page number to which reference is made.

8 STATEMENT OF THE CASE AND OF THE FACTS

On April 24, 2000, Governor Jeb Bush signed a warrant for the execution of

Bennie Demps, originally sentenced to death in April 1978. (AR-1) This case arises out of the representation of Demps by Appellee/Cross-Appellant William Braley

Salmon, Esq., between May 25, 2000, and the date of Demps’ execution on June 7,

2000. Mr. Salmon, a resident of Gainesville, Florida, is a member of the Florida

Bar. (AR-96-97) Mr. Salmon is not a member of the registry, maintained by the

Commission on Capital Cases pursuant to Section 27.710, Florida Statutes, of qualified criminal lawyers in private practice who are willing to accept appointment to represent defendants in capital cases (“the Registry”).

As the consequence of circumstances surrounding the representation of

Demps during the post-death warrant period, Mr. George F. Schaefer, also of

Gainesville and a member of the Registry, was appointed as “co-counsel for appellate purposes” for Mr. Demps on May 24, 2000, by order of the Eighth

Judicial Circuit Court. (AR-22-24). These circumstances revolve around the actions of Mr. Salmon as counsel of record for Mr. Demps.

On July 2, 1999, Mr. Demps, acting pro se, filed a Request for Appointment of Counsel with the Eighth Judicial Circuit (AR-8). Attorney Baya Harrison, a

9 Registry counsel, was appointed by Chief Judge Robert P. Cates on July 12, 1999, to represent Demps in connection with “certain claims pending in the circuit court per the provisions of Section 27.711". (AR- 17) On August 10, 1999, Mr. Salmon, who had previously represented Demps in executive clemency proceedings, entered a notice of appearance in the Circuit Court for the Eighth Judicial Circuit as privately retained counsel for Mr. Demps. (AR-17). By trial court order dated

November 30, 1999, the court relieved Mr. Harrison as registry counsel and allowed Mr. Salmon to take over a sole attorney for Demps. (AR-17). The order stipulated that, because Salmon was not court appointed to represent Demps under

Section 27.711, Florida Statutes, he should not “look to [the Florida Commision on Capital Cases] or the State of Florida for the payment of his fees. . .”. (AR-17).

Mr. Salmon then undertook to represent Demps in Rule 3.850 proceedings based on a “Motion to Vacate and Set Aside Judgment and Sentence and Grant

New Trial” filed by Demps on July 2, 1999. After the death warrant was signed, a

“Huff” hearing concerning the 3.850 motion was held on May 12, 2000, before

Chief Judge Cates. (AR-2). Thereafter, on May 22, 2000, Judge Cates entered an

“Order Denying Fourth Successive Motion to Vacate Judgment and Sentence.”

(AR-2-7).

That same day, May 22, 2000, Bennie Demps, again acting pro se, filed with

10 this Court a handwritten “Motion for Relief, Continuance, and Stay of Execution“; the Motion asserted, inter alia, that Mr. Salmon was retained only for circuit court proceedings as to the 3.850 Motion, and not for appeal proceedings. (AR-19-21)

By Order dated May 23, 2000, Demps’ request for the appointment of new counsel to represent him in this Court was denied “on the grounds that Bennie Demps is represented by William Braley Salmon, P.O. Box 1095, Gainesville, Florida.” (AR-

15).

The next day, May 24, 2000, the Office of Attorney General filed both in this Court and in the Eighth Judicial Circuit a written “Request for Clarification as to Representation of Appellant [Demps] by William Salmon on Appeal”.(AR-10-

21). The Attorney General raised the question of whether Mr. Salmon was under an ethical obligation to continue to represent Mr. Demps, especially since Demps’ execution was then scheduled for May 31, 2000--one week later. The Attorney

General requested this Court to “clarify” that Mr. Salmon was to represent Mr.

Demps in connection with the appeal of the trial court’s denial of the 3.850 motion.

(AR-12) .

That same day, May 24, 2000, Judge Stan Morris of the Eighth Judicial

Circuit, acting in the absence from the jurisdiction of Chief Judge Cates, issued an

“Order Appointing Co-Counsel For Capital Post-Conviction Relief.” (AR-22-24).

11 The order stated, in pertinent part:

[T]he Court is aware that a motion for post-conviction relief was denied on May 22, 2000, and a motion for rehearing was denied on May 23, 2000. The Court is not aware, however, of the perfection of those matters for appeal to the Florida Supreme Court by current post-conviction counsel, William B. Salmon. The Court is concerned that confusion over counsel’s status may unnecessarily delay consideration of the appeal of those issues in light of a current warrant directing execution of the defendant BENNIE E.DEMPS on May 31, 2000.

The Court stated its reason for appointing Mr. Schaefer to represent Demps:

[I]n order to protect defendant BENNIE E. DEMPS’s right to counsel under Florida 925.035 [sic], which ensures post-conviction representation for capital defendants, this Court hereby appoints co- counsel for appellate purposes in this case.

Finally, in reliance upon Mr. Schaefer’s status as a Registry lawyer, the Court ruled:

George F. Schaefer, a member of the Florida Bar, whose application has been filed and accepted with the Commission [on Capital Cases] is hereby appointed co-counsel for defendant BENNIE E. DEMPS in Case No. 77-116-CFA. (R-23) (emphasis added).

On May 25, 2001, Bennie Demps filed a pro se Notice of Appeal as to the denial of his 3.850 motion. (AR- 25); this Notice of Appeal was prepared by Mr.

Salmon.(SR-98). Also on May 25, 2000, this Court entered an Order directing that appellate briefs be filed on May 27, 2000; the Order was amended specifically to provide that simultaneous briefs would be filed by the State and Bill Salmon. (AR-

12 26, 27). That same day, May 25, 2000, Schaefer filed with Judge Morris an

“Emergency Application for Stay of Execution and Alternative Motion to Withdraw

By Court-Appointed Counsel.” (AR-28-44). In this pleading, Mr. Schaefer argued for a stay of execution to allow him time to prepare for appellate activity, or if, no extension was forthcoming, to allow to withdraw “immediately.” (AR- 28).

Following an expedited hearing on the afternoon of May 25, 2000, a stay was refused and Schaefer was denied leave to withdraw. Noting that the execution of Defendant Demps was scheduled for May 31, 2000, Judge Morris’s order found, in pertinent part:

[D]efendant is still represented by co-counsel Salmon as well as George Schaefer. Salmon has represented that it is his intention to file appropriate pleadings to perfect the appeal of the trial court’s denial of the motion for post conviction relief. . . . *** This Court has declined to pass on the merits of the stay because Salmon, post-conviction counsel, has full knowledge of all facts and circumstances necessary to fully and fairly present Defendant’s position on review of these matters by the Supreme Court, if that court should deem such review appropriate. *** The Court has declined to allow co-counsel George Schaefer to withdraw without passing on the merits of whether or not a just resolution of the case would compel a stay if Schaefer were the only counsel representing Defendant.

(AR-45-46).

Schaefer renewed his motion to withdraw as counsel to this Court, where it

13 was denied by order entered on Saturday, May 27, 2000. (AR-49). The Court’s

Order of May 27, 2000, extended the time for the filing of the Defendant’s brief

“submitted by Bill Salmon” until June 1, 2000; set oral argument for June 5, 2000; and rescheduled the execution of Defendant Demps for June 7, 2000. (AR-49)

(boldface in original). The Order concluded, stating: “Counsel for appellant shall submit applications for fees and costs to this Court at the conclusion of their representation of Bennie Demps in this Court.” (AR-49).

On June 5, 2000, oral argument was held in this Court. Mr. Salmon argued the appellate issues contained in his Demps brief. Later that day, the Court issued an order denying relief. Demps v. State, 761 So.2d 302 (Fla. 2000). Following the entry of the order, Mr. Schaefer filed an “Emergency Motion for Stay of Execution

Pending Application for Writ of Certiorari to the United States Supreme Court.”

(R-51-53). The “Emergency Motion” was denied by the Court on June 6, 2000.

(AR-54).

Following the execution of Defendant Demps on June 7, 2000, Messrs.

Salmon and Schaefer filed applications for attorney’s fees and costs in this Court; copies were served on the Office of Attorney General and the State Attorney for the Eighth Judicial Circuit, but no copy was provided to the Office of Comptroller.

(SR-97) Salmon’s application for fees and costs was served on June 30, 2000. For

14 his representation of Demps, Salmon requested attorney’s fees for himself in the amount of $34, 537.50, at a rate of $225 per hour, and various costs totaling

$3133.13.(SR-96). Salmon’s application was accompanied by the affidavits of

Robert A. Harper, Esq., (SR-112-114) and William B. Sheppard, Esq. (SR-109-

111). After being directed by this Court’s Order of July 17, 2000, to respond to the applications of both Schaefer and Salmon, on August 10, 2000, the Office of

Comptroller filed its Response. (AR- 55-72; SR-121-138).

In responding to Mr. Salmon’s application, the Office of Comptroller questioned whether Salmon was entitled to receive any payment from the State.

The Comptroller noted that Salmon was privately retained by Demps, further noting that Salmon was not a Registry member. (SR-125) The Comptroller’s response raised the applicability of Section 27.710(4) and (6), Florida Statutes, to prohibit the employement of Salmon when registry counsel Schaefer was already on the case. (SR-126) .

The response expressed to this Court the Comptroller’s construction of the applicable provisions of Chapter 27 as follows:

Pursuant to the provisions of Section 27.710(4), Fla. Stat. (1999), only one attorney may be “appointed,” and only that attorney is eligible to submit billings and seek compensation under the provisions of Section 27.711, Fla. Stat.(1999). Thus, there can only be one recovery of the $25,000 cap in this case. However, under Section 27.710(4), Fla. Stat

15 (1999), Schaefer could have “designated” Salmon to assist him if Salmon had not been serving as privately retained counsel, and if Salmon met the qualifications in Section 27.710, Fla. Stat. (1999). In that event, Salmon would be functioning as Schaefer’s assistant and would be working under his direction and control. As Schaefer’s designated assistant, Salmon would have no authority to obtain and additional recovery of attorney’s fees. Instead, Salmon’s billings should be provided to Schaefer, the appointed [Registry] attorney, who could monitor these billings and subsequently include them with his or her own billing to the State and motion for payment. Upon Schaefer’s receipt of payment, he could then pay his assistant. Even with an assistant, Schaefer’s billings could not exceed $25,000.

(SR-127).

The Comptroller’s response, noting that Mr. Salmon sought an hourly rate of

$250 per hour, stated: “Attorney fees are set at $100 per hour by Sections 27.703 and 27.711, Fla. Stat. (1999).” (SR-127). The response also criticized the hourly rate sought for investigator fees ($75 vs. the statutory rate of $40) and the lack of itemized law clerk bills. (SR-128). In its conclusion, the Response asked this

Court “ to deny the application of Salmon for an award of fees and costs, or, if the

Court determines Salmon to be entitled to some form of state payment of his fees and costs, to award such fees and costs only by virtue of a determination that

Salmon was serving in the capacity of Schaefer’s “assistant” pursuant to the provisions of section 27.710(6), Fla. Stat. (1999).”(SR-130).

On November 15, 2000, the Court, after considering Messrs. Schaefer and

16 Salmon’s applications for fees and costs, entered an Order directing Schaefer and

Salmon “to submit the appropriate documents to the Office of the Comptroller in conformity with Part IV, Chapter 27, Florida Statutes (1999).” (SR-148). After review of the application submitted by Salmon on December 8, 2000, Robert B.

Beitler, then acting General Counsel to the Comptroller, replied with a letter dated

December 22, 2000, regarding the application. (SR-149-150). This letter reiterated the concerns previously expressed to this Court, noting “we continue to question your eligibility for any compensation from the state in this matter.” (SR-149).

After receiving the Comptroller’s evaluation of his fee application, Mr.

Salmon’s co-counsel Schaefer filed a “Reapplication” for fees and costs with this

Court on or about December 12, 2001; no similar “reapplication” was filed by

Mr. Salmon. Subsequently, on February 26, 2001, this Court entered an order sending Schaefer’s fee application to circuit court for evaluation under Chapter 27.

(R-15).

On March 7, 2001, Mr. Salmon filed two pleadings with this Court: the first was styled “Petitioner’s Reply to Comptroller’s Response to Court’s Order

Regarding Payment of Fees and Costs,” (SR-152-165) . This purported to reply to the Comptroller’s Office letter of December 22, 2000 (see SR-160), and requested this Court to “enter its further order finding that the time, hourly rate, and expenses

17 incurred. . . were reasonable, and further directing the Office of the Comptroller and/or other payee to pay the amount requested by undersigned counsel.” (SR-

157)

The second pleading was styled “Request for Clarification of Court’s Order

Setting Hearing on Co-Counsel’s Application for Fees and Costs.” (SR-166-167).

Asserting that he and Mr. Schaefer were co-counsel, Salmon’s motion requested that his fee application be “incorporated with the hearing ordered by this Court on

Mr. Schaefer’s application.” (SR-166). On March 27, 2001, this Court granted the motion, and stated:

The trial court is ordered to conduct a hearing in regard to Attorney Bill Salmon’s application for fees and costs comtemporaneously with the hearing which is set before the trial court on Attorney George Schaefer’s application for fees and costs.

(SR-168).

By the time of this Court’s Order regarding Salmon’s fee hearing, however, the Eighth Judicial Circuit (Turner, J.), on March 13, 2001 (SR-63), had already held a hearing in regard to Mr. Schaefer’s application appplication for fees and costs that eventuated in a bench ruling and a trial court order awarding Schaefer

$26,180 in fees at the rate of $200 per hour based on a determination that the $100 per hour statutory rate was unconstitutional as applied to Mr. Schaefer (SR-15-20).

18 As a consequence, Mr. Salmon’s application was assigned to another judge,

Circuit Judge Maurice V. Giunta, who held an initial hearing was held in the matter on April 30, 2001. Following the hearing, on June 8, 2001, Judge Giunta issued a statement of his “preliminary position in memo form.” (SR-169-170). Based on

“all the documentation provided to date,” the trial court issued 16 findings. (SR-

170). Findings 14-15 show how the trial court perceived the implications of Mr.

Salmon’s relationship as co-counsel with Mr. Schaefer:

14. This Court finds that as privately retained counsel of Mr. Demps, Mr. Salmon has no claim of right for payment of his professional fee as such.

15. This court finds, however, that the appointment of Mr. Schaefer by the Circuit Court, the denial of his motion to withdraw, and the Order to Mr. Salmon to continue to function as appellate counsel, of necessity recognizes Mr. Salmon’s status for purposes of the execution warrant, to function and serve as co-counsel to Mr. Schaefer as authorized in Chapter 27.710(6), et al.

(SR-170). Finding 16 expressed the trial court’s order for future proceedings:

Mr. Salmon did serve as co-counsel to Mr. Schaefer pursuant to Chapter 27, and is entitled to be compensated accordingly.

This Court directs that further hearing be had to establish the extent of representation; the number of hours; and the hourly rate to be applied. This Court will hear argument as to whether the statutory fee cap of Chapter 27 should also be removed pursuant to applicable or applied as appropriate.

19 (SR-170)

On July 13, 2001, an evidentiary hearing was held before Judge Giunta in

Starke, Florida. (SR-192). Following the hearing, on August 2, 2001, the trial court issued another memorandum of findings (SR-179-180). The memorandum’s first finding was :

1. I find testimony of Mr. Salmon’s experts to be extremely helpful to the Court.

Concerning the Registry compensation provisions of Chapter 27, Part IV, Florida

Statutes, the court stated:

5. The Court finds that the fee scale adopted by the legislature in Chapter 27 is inherently reasonable in that excellent counsel have agreed to provide legal counsel and services at that rate of remuneration to clients needing counsel who cannot afford to retain private counsel.

In Paragraph 6 of his findings, the trial court specifically found that “ Mr. Salmon was impressed upon by the Court to continue representation of Mr. Demps, as co- counsel with Mr. Schaefer, a Registry Attorney, under the payment protocol of

Chapter 27. “ In this context, Paragraph 8 found as follows:

8. This Court is not in a position to address the remuneration awarded to co-counsel, Mr. Schaefer, but notes that a brother court did, in fact, award compensation pursuant to Chapter 27.

In Paragraph 9, the trial court approved the hours and expenses billed by Mr.

20 Salmon but rejected his claim to be paid at the rate of $225 per hour in favor of the statutory rate of $100 per hour:

9. This Court finds that Mr. Salmon be compensated at the reasonable fee rate of $100 per hour for the total number of hours billed and awarded supplemental costs as billed and expended.

(SR-180). The Court went on to find, in essence, that Mr. Salmon was equitably entitled to be compensated under Chapter 27, Part IV:

10. This Court finds this ruling to be in compliance with Chapter 27, in both its mete and measure, and notes substantial compliance with its requirements by Mr. Salmon, and the court which directed his continued representation of Mr. Demps, and to the extent that there may be technical deficiencies in the application of Chapter 27 to the facts of this case, I cheerfully declare them to be unconstitutional as applied as a denial of due process to Mr. Demps under the Constitution of the State of Florida and a violation of his federal constitutional rights under the 6th and 14th amendments.

(SR-180). The trial court reserved the right to award attorney fees to Stephen

Bernstein, who appeared as counsel for Salmon at the July 13 hearing, and to

Robert A. Harper and William Sheppard, who testifed as expert witnesses on behalf of Salmon’s claim. (SR-180). The memorandum concluded by stating the following:

Mr. Bernstein, please draft an order consistent with the above for the Court’s consideration. If the State wishes to exercise its right to appeal, feel free to submit a detailed factual order replete with transcript references, case law authority, and of course, your bill for such preparation.

21 Please allow the Comptroller and Attorney General to compromise on a non-appeal order and payment.

(SR-180).

On August 31, 2001, the trial court issued another memorandum, attaching a bill from William B. Sheppard, Esq., for his testimony at the hearing. The memo stated: “Please include this with my last proposed order for consideration of payment.” (SR-181). Sheppard’s bill sought payment for 9 hours at $300 per hour and expenses totalling $6.52. (SR-182-183). On October 3, 2001, a similar memo was issued concerning the attorney fee bill submitted by Mr. Harper, who sought payment for 10.22 hours at $250 per hour ($2555) and expenses totalling $81.78.

No similar memo was issued with respect to attorney fees claimed by Mr.

Bernstein, and the Office of the Comptroller was never furnished any affadavit or bill with respect to the attorney’s fees claimed by Mr. Bernstein.

On December 20, 2001, the trial court issued its “Order On Attorney’s

Fees.” (SR-184-186). This Order mirrored most of the findings made by the trial court in its Memorandum of August 8, 2001. Paragraph 4 of the Order stated:

This Court recognizes and finds that Mr. Salmon was pressed into service by the Court to represent Mr. Demps even though Mr. Salmon had previously filed a limited Notice of Appearance and Mr. Salmon’s reintroduction into the case was at the direction of the Florida Supreme Court and that he was operating as co-counsel with Mr. Schaefer, A Registry Attorney, under the payment protocol of Chapter

22 27.

(SR-185). Rejecting Mr. Salmon’ s claim for a higher rate, the Order found that the proper hourly rate of pay for Mr. Salmon’s services was the $100 per hour statutory rate:

While the Court acknowledges that Mr. Salmon has suggested that the appropriate rate of compensation be $200 [sic] per hour, the Court disagrees and makes the finding that Mr. Salmon shall be compensated at the reasonable rate of $100 per hour for the total number of hours billed and awarded, supplemental costs as billed and expended.

(SR-185). The Order awarded attorney’s fees to Stephen N. Bernstein, Esq., who represented Salmon at the fee hearing, stating:

This Court finds that Mr. Salmon had to incur the expense of representation [sic] himself in this claim, since due to the opposition of the Comptroller and AttorneyGeneral’s Office, there was no agreement available, and that Mr. Bernstein reasonably expended the time that he states in his Attorney’s Fee Affidavit and that his hourly rate is reasonable for members of the bar and his experience and the Court authorizes the payment of his fees in the amount of $6250.00.

(SR-185). The “Attorney’s Fee Affidavit” of Mr. Bernstein, apparently submitted ex parte, was not annexed to the Order. With respect to the testimony of William

Sheppard and Robert Harper, the Order stated:

The Court finds that the testimony of Mr. Sheppard and Mr. Harper were both reasonable and helpful and to the extent that they expended the time detailed in their affidavits and this Court finds that it is reasonable to authorize the payment of their fees as necessary and appropriate witnesses.

23 (SR-185). The Office of the Comptroller was ordered to pay the following fees:

[R]easonable attorney’s fees to Bill Salmon in the amount of 18, 483.31 (153.50 hours x $100.00 together with reasonable costs of $3,133.31).

[R]easonable attorney’s fees in the amount of $6250.00 as shown by his Affidavit, to Stephen N. Bernstein.

[R]easonable fees in the amount of $2,706.52, as shown by his Affidavit, to William B. Sheppard as an expert witness.

[R]easonable fees in the amount of $2,700.77, as shown by his Affidavit, to Mr. Harper as an expert witness.

(SR-186).

On January 3, 2002, the State of Florida served a Notice of Appeal regarding the trial court’s Order of December 20, 2001. This Notice was docketed by the

Bradford County Clerk on January 31, 2002. (SR-187-188). On January 19, 2002, a Notice of Cross-Appeal was served on behalf of Mr. Salmon. These cross- appeals ensued.

SUMMARY OF ARGUMENT

I. The order on review erroneously requires the Comptroller to pay Mr.

Salmon, who is not a Registry attorney, attorney’s fees separate and apart from the fee application of his co-counsel, Mr. Schaefer, who is a Registry attorney. To make this ruling, the trial court disregarded the reasonable construction of Chapter

24 27, Part IV, of the Comptroller. Under the Comptroller’s interpretation, even though Mr. Salmon, not on the Registry, had no independent entitlement to direct payment under the law, he could have been paid as the designated “assistant” to

Mr. Schaefer.

No contemporaneous assessment of the fee applications of co-counsel was conducted by the lower court, in derogation of this Court’s order requiring such an evaluation. This foreclosed a proper simultaneous review involving the linked fee applications. Because the trial court was unable to exercise jurisdiction over Mr.

Schaefer, who had already obtained a rapid judicial declaration that Section 27.711,

Florida Statutes, was unconstitutional as applied to him, the court erroneously gave constructive Registry status to Mr. Salmon expressly to facilitate his being paid independently under Section 27.711, Florida Statutes. This legal determination ignored the plain language of the statute and therefore departed from the essential requirements of law.

The construction of a statute by the administrative agency responsible for its enforcement has traditionally been accorded great deference by this Court. The

Comptroller has offered a construction of Chapter 27, Part IV, that is reasonable and perfectly consistent with the plain language of the statute. This construction is worthy of deference and adoption by this Court. If this construction is adopted as

25 worthy of deference by this Court, the Order on review must be reversed.

II. No lawful basis existed for the Order on review to make an award of attorney’s fees in favor of the attorney retained to represent Mr. Salmon at the hearing below. Neither Chapter 27, Part IV, nor any other statute authorizes such a fee award in this case. No contractual basis for an award exists, because Mr.

Salmon was not party to any contract with the State of Florida. Under the prevailing American Rule, the fee award is wholly unauthorized and must be reversed.

III. The trial court abused its discretion by ordering the Comptroller to make direct payment of attorney’s fees to counsel who appeared as expert witnesses for

Mr. Salmon at the hearing below. The trial court abused its discretion in three different ways. First, although expert witness fees can be taxed as costs in favor of a prevailing party, the Order on review does not tax costs in favor of a prevailing party. The Order does not identify Mr. Salmon as prevailing party, and he was not the prevailing party below.

Second, the trial court had no authority to make the sovereign State of

Florida directly responsible for paying the fees of witnesses called by Mr. Salmon to testify on his behalf. Florida law is clear that parties are responsible for paying their own witnesses. Even if the Order had taxed costs in favor of Mr. Salmon, the

26 State’s obligation at law would be to pay him, not his witnesses.

Third, in the context of this case, it is contrary to sound public policy for the courts of Florida to require the taxpayers to pay for unsuccessful challenges to the provisions of Chapter 27, Part IV. If an attorney who is to be paid at the rate specified in Section 27.711, Florida Statutes, instead demands but fails to obtain compensation beyond that authorized by the statutory protocol, the failed challenge must be funded by that counsel and not by the taxpayers. Chapter 27, Part IV,

Florida Statutes, is not intended to fund legal services for lawyers seeking higher pay.

STANDARD OF REVIEW

Points I and II involve pure questions of law, to be reviewed under a “de novo” standard. Demps v. State, 761 So. 2d 302, (Fla 2000). Point III involves an issue of judicial discretion, to be reviewed under an “abuse of discretion” standard.

ARGUMENT

I. THE TRIAL COURT’S ORDER DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BY MISAPPLYING THE CO- COUNSEL COMPENSATION CONDITIONS OF CHAPTER 27, PART IV, FLORIDA STATUTES (2000).

27 In its Response to this Court’s Order of July 17, 2000, which directed the

Office of the Comptroller to respond to the fee applications of Messrs. Salmon and

Schaefer, the Comptroller set out a reasonable construction of the provisions of

Chapter 27, Part IV, Florida Statutes, applicable when two attorneys seek State- paid compensation for service as capital collateral conflict lawyers for the same death-sentenced inmate. See SR-127. The Order on review erroneously requires the Comptroller to pay Mr. Salmon, who is not a Registry attorney, attorney’s fees separate and apart from the fee application of his co-counsel Mr. Schaefer, who is a Registry attorney. The trial court’s order departed from the essential requirements of law and ignored the Comptroller’s reasonable construction of the statute that he is responsible for enforcing.

Appellant has no quarrel with the trial court’s determination that if Mr.

Salmon is to be paid at all by the State of Florida, it must be from funds appropriated by the Legislature for payments under Chapter 27, Part IV. Appellant is in complete agreement with the trial court’s finding that “ as privately retained counsel for Mr. Demps, Mr. Salmon has no claim of right for payment of his professional fees as such.” (SR-170). Appellant assigns as plain error, however, the refusal of the Order on review to require that Mr. Salmon’s fees be presented through and paid by his Registry co-counsel, George F. Schaefer, the only person

28 with a clear statutory right to receive State payment under Chapter 27, Part IV, as capital collateral conflict counsel for Mr. Bennie Demps.

Chapter 27, Part IV, Florida Statutes, expresses clear legislative intent to pay qualified counsel who volunteer for the Registry maintained by the Commission on

Capital Cases reasonable compensation ($100 per hour ) for specified legal services provided to inmates who are ineligible for representation by the State’s

Capital Collateral regional counsel. See Section 27.703, Fla. Stat. (2001). Section

27.710(6), Florida Statutes, however, makes utterly clear that only one such qualified Registry counsel at a time is to be appointed and compensated in such cases: “More than one attorney may not be appointed and compensated at any one time under Section 27.711 to represent a person in postconviction capital collateral proceedings.” This section goes on, however, to create a procedure that allows appointed Registry counsel the opportunity for the assistance of qualified co- counsel: “However, an attorney appointed under this section may designate another attorney to assist him or her if the designated attorney meets the qualifications of this section.” Section 27.710(6), Fla. Stat. (2001).

This provision has been construed in the context of this case by the Office of the Comptroller in pari materia with the applicable restrictions contained in the fee and payment schedule of Section 27.711, Florida Statutes.. This schedule

29 defines both the amount of money allowed to be paid by the Comptroller to

Registry counsel and the timing of that compensation.

Section 27.711(4), Florida Statutes, prescribes a maximum level of compensation for each stage of post conviction proceedings. For example,

Section 27.711(4)(a), Florida Statutes, entitles a Registry counsel to up to $2500

“regardless of the stage of postconviction proceedings” upon his or her initial appointment and “after accepting appointment and filing a notice of appearance”.

With respect to appellate proceedings following the grant or denial of a capital defendant’s motion for post conviction relief, Section 27.711(4)(d), Florida

Statutes, provides a fund of up to $20,000 for counsel fees:

The attorney is entitled to $100 per hour, up to a maximum of $20,000, after timely filing in the Supreme Court the capital defendant’s brief or briefs that address the trial court’s final order granting or denying the capital defendant’s motion for postconviction relief and the state petition for habeas corpus.

Likewise, with respect to post-appellate, pre-execution representation, Section

27.711(4)(f), Florida Statutes, provides a fund of up to $4000 covering post brief transactions such as oral argument before this Court :

The attorney is entitled to $100 per hour, up to a maximum of $4000 , after the appeal of the trial court’s denial of the capital defendant’s motion for postconviction relief and the capital defendant’s state petition for habeas corpus become final in the Supreme Court.

30 Similarly, with respect to the costs associated with filing a petition to the U.S.

Supreme Court for review of the final action of this Court, Section 27.711(4)(g),

Florida Statutes, provides a fund of up to $2,500:

At the conclusion of the capital defendant’s postconviction capital collateral proceedings in state court, the attorney is entitled to $100 per hour, up to a maximum of to $2500, after filing a petition for certiorari in the Supreme Court of the United States.

The final paragraph of Section 27.711(4) makes specific provision for how the designated “assistant” co-counsel, as identified in Section 27.710(6), Florida

Statutes, is to be compensated under its fee schedule:

The hours billed by a contracting [i.e., Registry] attorney under this subsection may include time devoted to representation of the defendant by another attorney who is qualified under s.27.710 and who has been designated by the contracting attorney to assist him or her.

Under the compensation schedule set forth above, a combined total of

$29,000 is available to compensate Registry counsel for doing the tasks for which the State of Florida has been billed by Messrs. Salmon and Schaefer: appearance as Registry counsel; preparation of an appellate brief regarding the denial of a motion for post conviction relief; oral argument before this Court; and the preparation of a certiorari petition to the U. S. Supreme Court. Under the irreconcilable orders entered by the Eighth Judicial Circuit in this matter, however,

31 co-counsel Schaefer and Salmon have been awarded a total of $41, 530 for these tasks. In addition, the Order here awarded $11,550 in additional fees to attorneys retained by Mr. Salmon to represent his rejected claim for much greater personal compensation. In short, against the backdrop of a $29,000 statutory fund for collateral representation, the judicially ordered attorney fee disbursements, exclusive of costs, total $53, 080 for two weeks of work.

As far back as August of 2000, the Comptroller described to this Court how both Mr. Schaefer and Mr. Salmon could lawfully receive payment for the Demps appeal: Registry Counsel Schaefer could designate Mr. Salmon as his assistant for purposes of the appeal, and submit Salmon’s billings with his own. If disbursed at the statutory rate of $100 per hour, the combined fund available under Section

27.711(4) (a, d, f, and g), Florida Statutes, is sufficient to compensate 290 hours of attorney time. It is noteworthy that Messrs. Schaefer and Salmon, in their appellate representation of Mr. Demps, billed a combined total of 292 hours: 139 hours by

Mr. Schaefer and 153 by Mr. Salmon.

Intent on securing maximum compensation for himself, Mr. Schaefer, in his

“Reapplication” submitted to this Court in December 2000, formally disavowed any connection between his representation of Mr. Demps and that of his erstwhile co-counsel, Mr. Salmon. By obtaining a remarkably rapid lower court declaration

32 that Chapter 27, Part IV, was unconstitutional as applied to him, Mr. Schaefer foreclosed the contemporaneous lower court evaluation of the Salmon and

Schaefer fee application decreed by this Court in its Order of March 27, 2001.

(SR-168). Unfortunately, this Court’s Order was issued two weeks after Mr.

Schaefer had already obtained the hasty bench ruling which is also under appeal in this matter. See State v. Demps, Case No. SC01-1301 (Appellant’s Motion to

Consolidate, pending).

The foreclosure of a contemporaneous hearing on what became competing fee applications presented Judge Giunta with what must have appeared to be a

Hobson’s choice, that is, a choice between two equally unappealing options. On one hand, the trial court could follow the plain language of the statute relative to co- counsel and send Mr. Salmon away unpaid. Mr. Salmon was neither a Registry lawyer nor Mr. Schaefer’s designated “assistant.” Appointed Registry Counsel

Schaefer not only had refused to submit Mr. Salmon’s fee bills, but also had already obtained for himself a fee award at double the statutory rate, thereby all but extinguishing the fund available by law to pay attorney’s fees.

On the other hand, the trial court could ignore the plain language of the statute relative to co-counsel, and admit Mr. Salmon as a “virtual” Registry counsel for the sole purpose of the payment of fees. The trial court correctly recognized

33 that the “fee and payment schedule” of Section 27.711, Part IV, was “the exclusive means of compensating a court-appointed attorney who represents a capital defendant.” See Section 27.711(3), Fla. Stat.(2001). Unfortunately, to bring Mr.

Salmon’s claim for fees under that “fee and payment schedule, ” the trial court erroneously granted Mr. Salmon constructive Registry status, based on a legal fiction that Salmon had been “pressed into service by the Court” as counsel for

Demps. See SR-185. In selecting this option, the trial court was cognizant of the inequitable situation involving its lack of personal jurisdiction over Mr. Schaefer, as evinced by the oblique finding numbered 8 of its memo of August 2, 2001: “This

Court is not in a position to address the remuneration awarded to co-counsel, Mr.

Schaefer, but notes that a brother court did, in fact, award compensation pursuant to chapter 27.” (SR-179-180) Faced with an unavoidable choice between two unappealing options, the trial court erred when it selected the option that was least consistent with the clear provisions of, and legislative intent behind, Chapter 27,

Part IV, Florida Statutes.

The order on review found that “Mr. Salmon was pressed into service by the

Court to represent Mr. Demps” and suffered an involuntary “reintroduction into the case . . . at the direction of the Florida Supreme Court.” (SR-185). Given that this

Court’s order of May 23, 2000, merely acknowledged Mr. Salmon’s continuing

34 duty to represent Mr. Demps, it is for this Court alone to decide whether any enforced State “reintroduction” of Mr. Salmon into the Demps matter occurred, which “reintroduction” was sufficient to confer constructive Registry status on Mr.

Salmon. Under any circumstances, it would seem regressive at best to implicitly encourage non-Registry lawyers being “pressed into service by the Court” at the trial court level by according them the same claim to reimbursement under Chapter

27 that belongs to Registry members who volunteer to represent capital defendants in postconviction proceedings.

The express legislative intent behind state funding of the Registry program is to assure the people of Florida that “the judgments of its court system may be regarded with the finality to which they are entitled in the interest of justice.” That end was not previously promoted by the haphazard local recruitment of poorly paid capital defense counsel that prevailed prior to the enactment of the state’s capital collateral program. The former practice was justly criticized in this Court’s earlier decisions in capital cases such as Makemson and White. Chapter 27, Part IV, was intended to eliminate the need for that practice, not to provide an alternate means of funding it.

There is irreducible inconsistency between the statutory concept of a voluntary registry of qualified capital defense counsel and that of a lawyer’s

35 achieving involuntary induction into that roster, only for purposes of receiving State compensation, as the result of being “pressed into service” by the judicial branch of government. This is why Section 27.711, Florida Statutes, distinguishes so clearly between the situation of the court-appointed single Registry counsel, who is

“entitled” by the law to be compensated by the State, and that of the Registry- counsel appointed, designated “assistant” counsel, who must bill the State, if at all, through the “gatekeeper” Registry counsel. To grant non-Registry counsel any entitlement to be paid under Chapter 27, Part IV, is to rewrite a carefully drawn statutory plan. The Order on review did this. It must be overturned by this Court to vindicate the legislative intent behind Chapter 27, Part IV.

Appellant’s concern for consistent judicial enforcement of Chapter 27, Part

IV, by the trial courts of Florida stems from the Comptroller’s unique, nondelegable role in the implementation and administration of the “fee and payment” protocol of Section 27.711(4), Florida Statutes. The Comptroller has no free-standing appropriations. He must implement the express provisions of relating to payment of State contractors. This is true even when the contractors happen to be lawyers. The Florida Constitution prohibits the Comptroller’s expenditure of funds without their having been appropriated by the Legislature. In the words of Article VII, Section 1(c): “No money shall be drawn from the treasury

36 except in pursuance of appropriation made by law.” The only appropriated funds from which capital defense counsel can be paid by the Comptroller are those appropriated to the support of the Registry program.

To conserve these funds for the benefit of Florida’s taxpayers, the

Comptroller is required to provide payment to Registry counsel in conformance with the terms of Chapter 27, Part IV, Florida Statutes. The Comptroller’s Office has sought be both responsible and flexible, to the extent permitted by law, and to interpret the law in favor of providing payment to eligible counsel, if possible.

This is why, in August of 2000, the Comptroller showed this Court how both

Messrs. Salmon and Schaefer could be paid without violating any statutory limitations.

The Comptroller has been compelled to appeal two irreconcilable orders entered by different judges of the same judicial circuit, which orders awarded State- paid attorney’s fees to lawyers who served as appellate co-counsel in the same high profile capital case in this Court. Each order, in its own different way, is so inconsistent with the plain language of Chapter 27, Part IV, that even a most liberal interpretation of the law could not justify payment by the Comptroller of either award. The need for recourse to this Court for guidance was obvious.

The intent behind these appeals is to obtain a definitive construction of

37 Chapter 27, Part IV, by this State’s highest Court for consistent implementation of the Registry program. If trial courts are deemed free to declare the uniform statutory hourly rate inapplicable to certain registry counsel, or if they are free to provide State compensation to non-Registry counsel in capital cases other than as provided by Section 27.711(4), Florida Statutes, then the funds appropriated for the Registry program will surely be depleted in capricious fashion. It will be difficult, if not impossible, for the Comptroller to assure the rational administration of payment in capital post conviction proceedings involving Registry counsel.

Uniformity in the administration of justice in capital cases is a vital constitutional consideration. Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991). A failure of consistency in the administration of payment to counsel under the Registry program will frustrate the legislative intent behind the program and raise unnecessary doubt regarding State procedures relating to capital punishment in Florida.

Under Florida appellate law, the reasonable construction of a statute by the administrative agency charged with its enforcement is accorded substantial deference by the courts. See Fla. Dept. of Revenue v. Fla. Municipal Power

Agency, 789 So. 2d 320, 323 (Fla. 2001); Donato v. American Telephone and

Telegraph Co., 767 So. 2d 1146 (Fla. 2000); AmeriSteel Corp. v. Clark , 691 So.

2d 473 (Fla. 1997); Palm Harbor Special Fire Control Dist.v.Kelly, 516 So. 2d. 249

38 (Fla. 1987); Daniel v. Fla. State Turnpike Authority, 213 So. 2d 585 (Fla. 1968).

Appellant’s construction of Section 27.711, Florida Statutes, is reasonable and perfectly consistent with the plain language of Chapter 27, Part IV. This construction is worthy of deference by this Court in the interest of rational administration of the Registry program. If this construction is accepted by this

Court, the Order on review must be reversed.

If, however, this Court deems itself unable to defer to the reasonable administrative construction of the statute urged in this Initial Brief, the Appellant earnestly requests the Court to provide a definitive construction of the fee and payment protocol of Chapter 27, Part IV, that will enable the Office of the

Comptroller to administer the law in a rational manner, if not in accordance with the literal terms of the statute.

II. THE TRIAL COURT’S ORDER DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BY ORDERING THE COMPTROLLER TO PAY ATTORNEY’S FEES TO COUNSEL RETAINED BY MR. SALMON TO REPRESENT HIM IN THE PROCEEDINGS BELOW.

In its memorandum of findings dated August 2, 2001, the trial court stated that it “reserves [sic] to address and award attorney fees to Mr. Bernstein, Mr.

Shepherd [sic], Mr. Harper, et al.” (SR-180). The memorandum concluded, however, as follows, addressed to Stephen Bernstein, counsel for Mr. Salmon:

39 Mr. Bernstein, please draft an order consistent with the above for the Court’s consideration. If the State wishes to exercise its right to appeal, feel free to submit a detailed factual order replete with transcript references, case law authority, and of course your bill for such preparation.

Please allow the Comptroller and Attorney General to compromise on a non-appeal order and payment.

(SR-180).

The Order on review, issued December 20, 2001, without further proceedings before the trial court, stated as follows:

This court finds that Mr. Salmon had to go to the expense of representation [sic] himself in this claim, since due to the opposition of the Comptroller and the Attorney General’s Office, there was no agreement, and that Mr. Bernstein reasonably expended the time that he states in his Attorney’s Fee Affidavit and that his hourly rate is reasonable for members of the bar and his experience and the Court authorizes the payment of his fees in the amount of $6250.00.

(SR-185). The Order on review decreed that “[t]he Office of the Comptroller pay reasonable attorney fees in the amount of 6250.00 as shown by his Affidavit, to

Stephen N. Bernstein, Esq.” The “Affidavit” of Mr Bernstein was not annexed.

The “Affidavit” was never furnished to the Appellant. Appellant has never received any indication, other than the words in the Order on review, how the award of

$6250.00 was derived.

There is no basis in the law of Florida for an award of attorney’s fees to Mr.

40 Bernstein in connection with this matter. No statutory provision authorizes such an award. No contract allowing the recovery of attorney’s fees existed between Mr.

Salmon and any agency of the State of Florida. Consequently, the trial court had no discretion to make such an award. By awarding such fees, the trial court departed from the essential requirements of law and committed reversible error.

Numerous Florida appellate decisions make clear that the so-called

“American Rule” applies in the courts of this State. In State Farm Fire & Casualty

Co. v. Palma, 629 So. 2d 830 (Fla. 1993), this Court succinctly stated:

This Court has followed the “American Rule” that attorney’s fees may be awarded by a court only when authorized by statute or by agreement of the parties. See Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985), modified, Standard Guar. Ins. Co. v. Quanstrom, 55 So. 2d 828 (Fla. 1990).

629 So. 2d at 832. See, e.g., Hampton’s Estate v. Fairchild-Florida Construction

Co., 341 So. 2d 759 (Fla. 1976); Webb v. Scott, 129 Fla. 111, 176 So. 442 (1936);

State v. Barrs, 87 Fla. 168, 99 So. 668 (1924); Zinn v. Dzialynski, 14 Fla. 187

(1872). See also Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S.

240, 95 S.Ct. 1612, 44 L.Ed. 2d 141 (1975) (reaffirming the American Rule).

In its decision in Florida Patient’s Compensation Fund v. Rowe, supra, this

Court discussed at length the issue of statutory enactments authorizing awards of attorney’s fees in particular cases. The Court, noting that the

41 had enacted more than seventy statutes authorizing such awards, observed that

“[t]he legislature of this state has not hesitated to enact statutes providing authority to the courts to award attorney fees.” 472 So. 2d at 1148. The Court went on to hold as follows:

We find that an award of attorney fees to the prevailing party is “a matter of substantive law properly under the aegis of the legislature,” in accordance with the long-standing American Rule adopted by this Court. See Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 504 (Fla. 1982).

Id., at 1149.

No provision in Chapter 27, Part IV, allows the award of attorney’s fees to the counsel retained to represent a lawyer in a dispute over the payment of fees or costs payable under Section 27.711, Florida Statutes. Section 27.711(13), Florida

Statutes, establishes procedures relative to the payment of claims for fees by

Registry counsel, but does not authorize attorney’s fees for counsel retained by a

Registry lawyer in a billing dispute with the the Comptroller. Section 27.710(4),

Florida Statutes, requires that a Registry lawyer enter into a contract with the

Comptroller, but nothing there grants counsel an award of attorney’s fees for prevailing in a dispute over the contract. In short, substantive law governing state- paid compensation for postconviction counsel does not authorize courts to award attorney’s fees to Registry counsel involved in a dispute with the State over

42 attorney’s fees. Cf. Songer v. Citrus County, 462 So. 2d 54 (Fla. 5th DCA 1984).

The legislature had every opportunity to authorize courts to make attorney’s fee awards to prevailing Registry counsel, if only as part of an award of litigation costs to the prevailing party. This was not done. That the legislature did not do so signifies a deliberate legislative determination to withhold from the courts authorization to grant the kind of fee award erroneously decreed in favor of Mr.

Bernstein.

Turning to the other prong of the “American Rule,” there is no basis for a conclusion that an agreement existed between Mr. Salmon and the State of Florida with respect to the payment of his attorney fees in the event of a dispute over payment. Mr. Salmon is not a qualified member of the Registry. He has no independent right to receive any payment at all under Chapter 27, part IV. At no time was he party to any contractual agreement with the Comptroller. There is no basis whatsoever for a court to find an agreement-based entitlement to an award of fees in favor of counsel for Mr. Salmon.

The Order on review identifies no statute upon which the award of fees to

Mr. Bernstein is, or even may be, lawfully founded. The Order identifies no contractual agreement by which the State agreed to pay fees to Mr. Salmon’s counsel. The Order’s failure to articulate any basis under the American Rule for its

43 award of fees to Mr. Bernstein is a tacit admission that there was no lawful foundation for the entry of the award.

In summary, under the American Rule, as historically applied in Florida, there was no legal basis for the trial court to award attorney’s fees to Mr. Bernstein.

The Order fails to articulate any lawful reason in support of the award of fees to

Mr. Bernstein. The award must be reversed as unauthorized.

44 III. THE TRIAL COURT ABUSED ITS DISCRETION AND DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF LAW BY ORDERING THE COMPTROLLER TO PAY ATTORNEY’S FEES TO COUNSEL APPEARING AS EXPERT WITNESSES FOR MR. SALMON IN THE PROCEEDINGS BELOW.

The trial court’s August 2, 2001, memorandum stated: “I find the testimony of Mr. Salmon’s experts to be extremely helpful to the Court.” (SR-179). It also stated: “This Court reserves [sic] to address and award attorney’s fees to Mr.

Bernstein, Mr. Shepherd [sic], Mr. Harper et al. “(SR-180) (emphasis added). The initial finding of the Order on review was: “That the testimony of Mr. Salmon’s experts, Robert A. Harper and William Sheppard were [sic] extremely helpful.”

(SR-184) In a single run-on sentence, the Order sets forth the trial court’s rationale for awarding attorney’s fees to Messrs. Harper and Sheppard:

The Court finds that the testimony of Mr. Sheppard and Mr. Harper were [sic] both reasonable and helpful and to the extent that they expended the time detailed in their Affidavits and this Court finds that it is reasonable to authorize the payment of their fees as necessary witnesses and appropriate witnesses.

(SR-185). The Order then decreed that the Comptroller pay “reasonable fees in the amount of $2,706.52 . . . to William B. Sheppard as an expert witness”; and

“reasonable fees in the amount of 2,700.77. . . to Mr. Harper as an expert witness.”

(SR-186). In each case, the sum that the Comptroller was ordered to pay was the total of legal fees and costs billed to Mr. Salmon by Messrs. Harper and Sheppard.

45 Harper billed Salmon for 10.22 hours at $250 per hour. Sheppard billed Salmon for

9 hours at $300 per hour.

By ordering the Comptroller to make direct payment of attorney’s fees to

Messrs. Harper and Sheppard, the trial court abused its discretion in three different ways. First, although expert witness fees can be taxed as costs in favor of the prevailing party in a civil action, the Order does not tax costs in favor of a prevailing party. More importantly, the Order does not identify Mr. Salmon as prevailing party, and he was not the prevailing party below.

Second, the trial court had no authority to make the sovereign State of

Florida directly responsible for paying the fees of witnesses called by Mr. Salmon.

Florida law is clear that parties are responsible for paying their own witnesses.

Even if the Order had taxed costs in favor of Mr. Salmon, the State’s obligation at law would be to pay him, not his witnesses.

Third, it is contrary to sound public policy for the courts of Florida to require the taxpayers to pay for unsuccessful challenges to the provisions of

Chapter 27, Part IV. If an attorney who is arguably entitled to receive compensation at the rate specified in Section 27.711, Florida Statutes, instead demands but fails to obtain compensation beyond that authorized by the statutory protocol, the failed challenge must be funded, by that counsel. Chapter 27, Part

46 IV, is not intended to fund legal services for lawyers seeking higher pay.

A. Mr. Salmon Was Not The Prevailing Party Below.

The principle that the party on whose behalf a witness is called pays the witness’s fee was settled law before the State of Florida was admitted to the Union.

See Section 92.151, Fla. Stat.(2001), first enacted in 1828. See also Section

57.041, Fla. Stat. (2001). Accord, Opp. Atty. Gen. 067-69 (October 25,1967).

Florida law is equally clear that courts are authorized to tax witness fees as costs in favor of the prevailing party in a civil action. Section 92.151 states, in pertinent part:

Compensation shall be paid to the witness by the party in whose behalf the witness is summoned, and the prevailing party may tax the same as costs against the prevailing party’s adversary. . . .

The same principles apply by law in the case of expert witness fees. Section

92.231(2), Florida Statutes, expressly provides as follows:

Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the costs of any exhibits used by such witness in the amount of $10 per hour or such amount as the trial judge may deem reasonable, and the same shall be taxed as costs.

The Order on review contains no finding or conclusion that declares Mr.

Salmon to be the prevailing party. It contains no finding or conclusion taxing costs in favor of Mr. Salmon as prevailing party. Save for identifying the testimony of

47 Messrs. Harper and Sheppard as “extremely helpful” and dubbing them

“necessary” and “appropriate” witnesses, the Order contains no legally sufficient rationale justifying a requirement that the taxpayers be responsible for direct payment of attorney’s fees to Mr. Salmon’s witnesses.

The Order could not have designated Mr. Salmon as prevailing party in this case for a simple reason: he did not prevail. His cross-appeal in this matter is mute proof that he was aggrieved rather than vindicated by the Order on review.

The essential element in Mr. Salmon’s application for fees was his claim to be paid by the State of Florida as if Chapter 27, Part IV, did not apply. This is demonstrated by his “Application for Award of Attorney Fees and Costs,” submitted to this Court on June 30, 2000. (SR-96-97). Nowhere in the document did Mr. Salmon claim a right to be paid attorney fees at $100 per hour under

Chapter 27, Part IV. His claim is for fees at $225 per hour, without any reference to Chapter 27, Part IV. (SR-100).

Mr. Salmon’s “Application” was accompanied by affidavits from Messrs.

Sheppard (SR-109-111) and Harper (SR-112-114). In his affidavit, Mr. Sheppard expressed his professional opinion that “an hourly rate of $250 is a reasonable attorney’s fee rate for the services of Mr. Salmon in this case.”(SR-110). In his affidavit, Mr. Harper disagreed with Mr. Sheppard, giving his own professional

48 opinion that “an hourly rate of $225 is a reasonable attorney’s fee rate for the services of Mr. Salmon in this case.”(SR-114). Later, in March of 2001, Mr.

Salmon reaffirmed to the Court that the fee award he sought was “without limitation by restraints suggested by the Comptroller under Section 27.711, Florida Statutes.”

(SR-156).

The trial court issued its first findings on June 8, 2001. (SR-169-170). The trial court rejected Mr. Salmon’s claim to compensation outside of Chapter 27, Part

IV: “[A]s privately retained counsel for Mr. Demps, Mr. Salmon has no claim of right for the payment of his professional fee as such.” (SR-170). Thus, as early as

June 2001, Mr. Salmon failed to prevail on his claim for fees paid without the

“limitation by restraints” of Chapter 27, Part IV.

No different result was obtained by Mr. Salmon from evidentiary hearing. In its memorandum of August 2, 2001, the trial court sustained the primary “restraint” targeted by the testimony of Messrs. Harper and Sheppard. The Court upheld the statutory rate of $100 per hour, finding it “inherently reasonable.” As the court put it:

The Court finds that the fee scale adopted by the legislature in Chapter 27 is inherently reasonable in that excellent counsel have agreed to provide legal counsel and services at that rate of remuneration to clients needing counsel who cannot afford to retain private counsel.

49 (SR-179) (emphasis added). This finding derives from the admission by Mr.

Harper, elicited on voir dire, that he was a currently a Registry counsel who was being compensated at the statutory hourly rate. See SR-208-211; 225-226.

This finding reappears, albeit in garbled form, in the Order on review:

This Court also finds that the fee scale adopted by the Legislature in Chapter 27 is inherently reasonable in that excellent counsel have agreed to provide legal counsel and services at the [sic] rate of remuneration in circumstances where clients need counsel but cannon [sic] afford to retain private counsel.

(SR-184). It is reinforced by a finding rejecting Mr. Salmon’s original claim:

“While the Court acknowledges that Mr. Salmon has suggested that the appropriate rate of compensation be $200.00 [sic] per hour, the Court disagrees and makes the finding that Mr. Salmon shall be compensated at the reasonable rate of $100 per hour. . . .” (SR-185).

Mr. Salmon did not prevail below. If Mr. Salmon is not the prevailing party, then, under the American Rule as applied in Florida, the attorney fees charged Mr.

Salmon by Messrs. Harper and Sheppard are his own responsibility. The court below abused its discretion and committed reversible error by requiring the

Comptroller to pay the fees of Messrs. Harper and Sheppard.

B. Mr. Salmon Is Responsible For His Own Expert Witness Fees

In Section A, supra, Appellant set forth the statutory provisions that require

50 parties to litigation in the State of Florida to pay the fees of their own witnesses.

Section 92.151, Florida Statutes, goes so far as to give an unpaid witness bill the force of a judgment against “the party in whose behalf the witness was summoned:”

[B]ut if any witness should serve without payment in advance, at the completion of his or her services the witness may exhibit his or her account for compensation, and when the same shall have been taxed and approved by the court wherein the services have been rendered, such bill shall have the force and effect of judgment and execution against the party in whose behalf the witness was summoned, and be collected by the sheriff as in other cases of execution. (emphasis added).

This provision unmistakably assigns Mr. Salmon legal responsibility for payment

Messrs. Harper and Sheppard. Absent a determination that the fees in question be taxed as costs against the State, the trial court had no lawful authority to render a direct judgment in favor of Mr. Salmon’s expert witnesses against the sovereign.

Even if the trial court “taxed and approved” their bills according to the statute, they still are to look for payment from Mr. Salmon, the party on whose behalf they were summoned. Under Section 57.041(1), Florida Statutes, only the “party recovering judgment” gets to recover all his or her legal costs and charges from the losing party.

Consequently, even if the expert witnesses’ attorney fees had been lawfully taxed as costs due to Mr. Salmon from the State of Florida as the “losing party”

51 below, the outer extent of the trial court’s discretion was to have required the

Comptroller to pay to Mr. Salmon the sum of $5407. 29. This is the total of the costs and fees that Mr. Salmon owed his witnesses. By holding the State of

Florida directly liable for payment to Messrs. Harper and Sheppard, the trial court transgressed the limits of its discretion and committed reversible error.

C. No Sound Public Policy Requires The State Of Florida To Fund Unsuccessful Challenges To Its Own Statutes

The Legislature did not intend that funds appropriated for capital collateral representation be diverted to support other types of litigation. Section 27.7001,

“Legislative Intent,” states, in pertinent part:

It is the further intent of the Legislature that collateral representation shall not include representation during retrials, resentencings, proceedings commenced under chapter 940, or civil litigation. (emphasis added)

Appropriations under Chapter 27 support the Registry program, funding attorney’s fees, investigators, and expert witnesses--for the benefit of capital defendants.

Nothing has been appropriated to support attorney’s and expert witness fees for the benefit of defense counsel.

The record before this Court in the companion appeals of State v. Demps shows that two circuit judges of the same judicial circuit came to irreconcilable conclusions regarding the $100 hourly rate prescribed by Sections 27.703(2) and

52 .711(4), Florida Statutes. One judge, after evidentiary hearing, concluded that the rate was “inherently reasonable.” The other, without evidentiary hearing, declared the rate was “confiscatory” and therefore unconstitutional as applied to Registry counsel. If this Court affirms both decisions separately, substantial uncertainty will remain as to the proper measure of compensation for Registry counsel.

In addition, this Court’s recent decision in Olive v. Maas, 811 So. 2d 644

(Fla. 2002), approved the applicability of Makemson and its progeny to capital collateral representation. The decision, however, also presages the probability of marginal Makemson-type claims and attendant civil litigation. Mr. Schaefer’s double-rate award, at issue in the companion appeal, rests on an invocation of

Makemson, even though his postconviction service was limited to a two week period.

Uncertainty fueled by economic self-interest will encourage the presentation to the lower courts of more questions testing the “limitation by restraints” of

Chapter 27, Part IV. The mandatory hearings required for approval of payments to

Registry counsel offer a ready venue. See Section 27.711, Fla. Stat (2001). If the courts of Florida are deemed to have discretion to make the State pay directly for expert witness and other attorney’s fees in cases where disputant counsel does not even prevail, a powerful perverse incentive will be created for additional litigation:

53 the prospect of state-paid attorney’s fees, win or lose, for lawyers retained by the disputant. It is foreseeable that this will cause a significant volume of legislatively unforeseen “transactional costs” to the Registry program. Needless to say, such

“transactional costs” will do nothing to pay for direct representation of capital defendants. These costs can only dissipate appropriations otherwise earmarked exclusively for actual capital collateral representation.

The Order on review awards a total of $30,140.60 for two weeks of capital postconviction legal services by an “assistant” attorney. Nearly 40% of this total--

$11,656.29--is attributable to attorney’s fees for Mr. Bernstein ($6250) and to

Messrs. Harper and Sheppard ($5704.29). Only $18,483.31 of the ordered expenditure is state payment for legal work undertaken in capital collateral representation. If a 60/40 cost/benefit ratio can be expected in other Registry cases that are now working their way through the court system of Florida, it is not difficult to visualize the deleterious effect a proportional level of “transactional costs” would have on the overall level of funds available statewide to pay for future capital collateral representation.

No sound public policy promotes State subsidies for attorney fee litigation.

In its 1984 decision in Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1984), this

Court authorized the taxation as costs of fees associated with attorney testimony as

54 expert witnesses in attorney fee disputes. The Court observed, however:

We do not hold that expert witness fees must be awarded in all cases. Generally, lawyers are willing to testify gratuitously for other lawyers on the issue of reasonable attorney’s fees. This traditionally has been a matter of professional courtesy. An attorney is an officer of the court and should be willing to give the expert testimony necessary to ensure that the trial court has the requisite competent evidence to determine reasonable fees. Only in exceptional cases where the time required for preparation and testifying is burdensome, should the attorney expect compensation.

Id., at 1185-1186. Appellant respectfully suggests to the Court that this principle should apply with equal or greater force in cases involving capital collateral representation.

No lawyer is forced to join the Registry; most are unqualified for membership. Counsel who are unwilling to provide postconviction legal services at the statutory rate should not volunteer to join the Registry. Mr. Sheppard, for example, although qualified, has not elected to join. (SR-273) Except in those truly extraordinary circumstances that fall within the ambit of Makemson and its progeny, counsel who elect to join the Registry should be held estopped to contest the fee and payment schedule of Section 27.711, Florida Statutes, not granted State funding support for their pursuit of additional windfall compensation. Even in those rare situations that fairly fall within the Makemson rationale, counsel should be mindful of this Court’s Travieso admonition, not secure in the expectation that,

55 win or lose, the State will be made to bear their fees and costs for the litigation.

This Court should not give its sanction to any judicial policy that has the practical effect of requiring the taxpayers of Florida to bear the full cost of unsuccessful litigation over additional compensation brought by counsel entitled to be paid under Section 27.711, Florida Statutes. The Order on Review must be reversed.

CONCLUSION

Based on the foregoing, the Order on review must be reversed.

Respectfully submitted,

Robert Burgess Beitler Fla. Bar No. 327751 General Counsel

Richard T. Donelan, Jr. Fla. Bar No. 198714 Chief Counsel Office of the Comptroller 101 E. Gaines St., Suite 526 Tallahassee, FL 32399-0350 (850)410-9896 Fax (850)410-9645

56 CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Initial Brief was furnished by U.S. Mail this 17th day of June, 2002 to:

William B. Salmon, Esq. P.O. Box 1095 Gainesville, FL 32602-1095

George F. Schaefer, Esq. 2830 NW 41st Street, Suite 601 Gainesville, FL 32606-1111

Michael Pearce Dodson, Esq. General Counsel, Office of Legislative Services The Florida Legislature 111 West Madison Street, Room 701 Tallahassee, FL 32399-1400

Curtis M. French, Esq. Assistant Attorney General The Capitol, Suite PL-01 Tallahassee, FL 32399-1050

William P. Cervone, Esq. State Attorney P.O. Box 1437 Gainesville, FL 32602-1437

Richard T. Donelan, Jr.

57 CERTIFICATE OF COMPLIANCE

In accordance with Fla. R. App. P. 9.210(2), undersigned counsel certifies that this computer-generated Initial Brief was prepared in 14 point Times New Roman font.

Richard T. Donelan, Jr.

58